Shri. Rajubhai Ramabhai Bhusara vs Union Of India Through The ...
2017 Latest Caselaw 5736 Bom

Dixit
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION
                         CIVIL WRIT PETITION NO.6372 OF 2017
        Rajubhai Ramabhai Bhusara,                       ]
        Age : 27 years,                                  ]
        S/o. Ramabhai Kakadbhai Bhusara,                 ]
        Working as Police Sub Inspector,                 ]
        UT of Dadra and Nagar Haveli,                    ]
        Silvassa - 396 230.                              ]
                                                         ]
        R/o. : At & Post Khanvel Patalipada,             ]
        U/T of Dadra & Nagar Haveli,                     ]
        Silvassa - 396 230.                              ] .... Petitioner

                         Versus
        1. Union of India,                               ]
          Through the Administration of Union            ]
          Territory of Dadra & Nagar Haveli,             ]
          Silvassa - 396 230.                            ]
                                                         ]
        2. The Inspector General of Police,              ]
          Administration of Union Territory of           ]
          Dadra & Nagar Haveli,                          ]
          (Police Department), PHQ,                      ]
          Silvassa - 396 230.                            ]
                                                         ]
        3. Suraj Babubhai Raut,                          ]
          Aged 26 years,                                 ]
          Son of Babubhai Raut,                          ]
          R/at Room No.12, Block-I,                      ]
          Type-II, Sec. IV, Police Line,                 ]
          Ultan Faliya Road, Silvassa,                   ]
          UT of Dadra & Nagar Haveli 396 230             ] .... Respondents


        Mr. Sandeep V. Marne for the Petitioner.
        Mr. Shrishailya S. Deshmukh for Respondent Nos.1 and 2.
        Mr. G.K. Masand, i/by Mr. Himanshu Shukla, for Respondent No.3.


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                  CORAM : SMT. V.K. TAHILRAMANI &
                         DR. SHALINI PHANSALKAR-JOSHI, J.J.

                 DATE       : 8 TH AUGUST, 2017.



ORAL JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.]


1.      Rule. Rule made returnable forthwith.


2.      With consent of learned counsel for the parties, heard finally

at the stage of admission itself.


3.      By way of present Writ Petition, the Petitioner is challenging

the Judgment and Order dated 24th April 2017 passed by the

Central Administrative Tribunal, Mumbai, in Original Application

No.838 of 2016. The said application was preferred by the Petitioner

for a declaration that he has been validly appointed to the post of

'Police Sub-Inspector' vide appointment order dated 16th August

2016 and Respondent No.2 has no legal right or authority to cancel

the said appointment, without following the prescribed procedure of

law. As the said application came to be dismissed, the Petitioner has

approached this Court.


4.      Facts

, which are necessary for deciding this Petition, can be

stated as follows :-

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. Petitioner belongs to 'Scheduled Tribe' category and is resident

of Union Territory of Dadra and Nagar Haveli. Initially, he was

appointed as 'Police Constable' in the Police Department of U.T.

Administration of Dadra and Nagar Haveli by order dated 1 st June

2011. In response to the advertisement issued by Respondent No.2

on 14th March 2016 for filling up the post of 'Police Sub-Inspector

(Male)', from open market for direct recruitment for the Union

Territory of Dadra and Nagar Haveli, Petitioner applied for the said

post. In all, 6 posts were notified by the said advertisement; out of

them, 4 posts were for the candidates from 'Open' category; 1 post

was for candidate belonging to 'Scheduled Tribe' category and 1 post

was reserved for candidate belonging to 'Scheduled Caste' category.

Since the Petitioner fulfilled eligibility criteria, he applied for the

said post.

5. After successfully undergoing the physical endurance test,

followed by written test, name of the Petitioner was included in the

list of provisionally selected candidates for the post of 'Police Sub-

Inspector' on 29th July 2016 on the official website of Respondent

No.2. His name was included in the category of the candidates

belonging to 'Scheduled Tribe'. Thereupon, after due verification of

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the documents submitted by him on 6th August 2016, the letter of

offer of appointment was issued to him on 8th August 2016, by which

he was offered temporary appointment to the post of 'Police Sub-

Inspector'. Petitioner accepted the said offer of appointment by his

letter dated 10th August 2016 and tendered his technical resignation

on 10th August 2016 from the post of 'Police Constable' for the

purpose of joining the post of 'Police Sub-Inspector'. Thereafter,

Respondent No.2 issued an order dated 12th August 2016 appointing

Petitioner to the post of 'Police Sub-Inspector' w.e.f. 16th August

2016. Petitioner was put on probation for two years from the date of

joining. His technical resignation from the post of 'Police Constable'

was accepted on 16th August 2016 and on the same day, Petitioner

joined the post of 'Police Sub-Inspector'. Initially, Petitioner was

imparted basic training at Silvassa for two months and thereafter he

was directed to join the Police Training College at New Delhi.

Accordingly, he joined the said College from 14 th October 2016. As

per the case of the Petitioner, from the date of his appointment as

'Police Sub-Inspector' on 16th August 2016, he was being paid salary

for the said post.

6. However, all of a sudden, on 13 th December 2016, the

Petitioner was handed over the order of the same date informing

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him that, as upon the detailed cross-verification of documents of all

the candidates in the merit-list, an anomaly in caste category, as

reflected in the list, was detected, hence, the revised merit-list was

prepared. As per the said list, the seat belonging to 'Scheduled Tribe'

category was to be allotted to the candidate belonging to the said

'Scheduled Tribe' category, who has secured highest marks in the

merit-list. It was informed that, as Petitioner has not secured

highest marks in the said category, his provisional candidature to

the post of 'Police Sub-Inspector' stands cancelled.

7. On receipt of this letter, Petitioner, immediately on 15 th

December 2016, made representation to Respondent No.1

requesting for cancellation of the said order. Moreover, since the

order was extremely confusing and vague, Petitioner presented

himself at the Police Training College, New Delhi, on 16 th December

2016 to continue his training. As he was advised there to challenge

the order dated 13th December 2016, Petitioner approached the

Central Administrative Tribunal, Mumbai, by filing Original

Application No.838 of 2016 challenging the order dated 13 th

December 2016 and seeking a declaration that he has been validly

appointed to the post of 'Police Sub-Inspector'.

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8. In the said application, an interim order was passed on 21 st

December 2016 directing Respondent Nos.1 and 2 not to restrain

the Petitioner from attending the training course for the post of

'Police Sub-Inspector' and the said interim order was continued from

time to time till final disposal of the Original Application.

9. This application of the Petitioner came to be resisted by

Respondent Nos.1 and 2 vide affidavit-in-reply filed on 3 rd January

2017. It was contended therein that before uploading the final

merit-list, when cross-verification of documents of all the

provisionally selected candidates was done, an error was detected in

the caste category of some of the candidates in the provisional

select-list dated 28th July 2016. It was found that the caste category

of some of the candidates was wrongly reflected in the said merit-list

and upon correcting the caste category of the candidates, it was

revealed that candidate at Serial No.8, who is now joined as

Respondent No.3 in the present Petition, and candidate at Serial

No.13 also belong to 'Scheduled Tribe' category. However, through

oversight, they were shown against 'Unreserved/Open' category and

'Other Backward Class' category, respectively. It was also found that

Respondent No.3 has secured highest marks i.e. 58.10 and since he

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also belong to 'Scheduled Tribe' category, his name should have been

included in the select-list, instead of the name of the Petitioner. It

was further found that the candidate at Serial No.13 was also

belonging to 'Scheduled Tribe' category and he has secured second

position in merit having obtained 56.02 marks. It was revealed that

the marks secured by the Petitioner were only 55.66 and hence he

could not have been selected for the post of 'Police Sub-Inspector'

from the 'Scheduled Tribe' category. This mistake was, accordingly,

rectified by issuing the impugned order. It is submitted that since

provisional candidature of the Petitioner was cancelled, his

appointment to the post of 'Police Sub-Inspector' also stands

terminated and he is reverted to his original post of the 'Police

Constable'. According to Respondent Nos.1 and 2, therefore, the

application filed by the Petitioner could not be entertained and the

same needs to be dismissed.

10. During pendency of the said application, Respondent No.3

preferred Miscellaneous Petition No.59 of 2017 on 17 th January

2017 seeking to implead himself as party-Respondent on the ground

that he was issued offer of appointment dated 20th December 2016,

after the impugned order dated 13th December 2016 was passed.

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According to him, on account of the issuance of appointment letter

dated 20th December 2016, he had tendered technical resignation

from his services as 'Administrative Assistant' in the State run

hospital at Silvassa and has joined the post of 'Police Sub-Inspector'.

Only on account of the interim order passed by the Tribunal, he was

not in a position to join training programme and hence, considering

that his interest was likely to be prejudicially affected, the Tribunal

allowed his Petition for impleadment.

11. Thereafter, upon hearing submissions advanced by learned

counsel for the parties and after going through the original record

relating to the selection process, the learned Tribunal was pleased to

dismiss Original Application of the Petitioner vide its impugned

Judgment and Order dated 24th April 2017. The Tribunal was also

pleased to vacate the interim order dated 21st December 2016 and

directed the Respondents to call back the Petitioner from the

training and giving him liberty to join as 'Police Constable'.

12. Aggrieved by the impugned order of the Tribunal, the

Petitioner has approached this Court, under Article 226 of the

Constitution of India, raising two fold contentions. In the first place,

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it is submitted that the impugned order dated 13 th December 2016

was passed in gross violation of the provisions of Central Civil

Services (Temporary Service) Rules, 1965, as Petitioner was not

given any notice before passing of the said order. It was submitted

that in the appointment letter, it was clearly stated that his services

will be terminable only on one month's notice from either side in

accordance with Central Civil Services (Temporary Service) Rules,

1965. However, no such notice was issued to him and he was

terminated from the services without following due process of law or

without giving him an opportunity of hearing. It is submitted that

the Tribunal has completely ignored this important aspect raised by

the Petitioner in his Original Application and rejoinder.

13. Secondly, it was submitted that the reason given by

Respondent Nos.1 and 2 for cancellation of the provisional select-list

was not true and correct. It was contended that, in addition to the

caste category, several changes were made in the date of birth as

well as marks in respect of many candidates in the final merit-list

published by Respondent Nos.1 and 2. The provisional select-list and

the final revised merit-list are completely at variance with each

other and the Tribunal has not considered this aspect also. It was

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submitted that for no fault on the part of the Petitioner, his

appointment is being cancelled and that order being wrongly upheld

by the Tribunal, it needs to be quashed and set aside.

14. Per contra, learned counsel for Respondent Nos.1 and 2 and

learned counsel for Respondent No.3 have supported the said order

by pointing out that the appointment of the Petitioner was not only

provisional, but it was also found to be not a valid appointment and

hence, Respondent Nos.1 and 2 were fully justified in cancelling the

said appointment. Therefore, according to them, no fault can be

found in the impugned order of the Tribunal.

15. We have given our thoughtful consideration to the submissions

advanced at bar and in our opinion, the issue involved in the present

Petition stands fully covered in the Judgment of the Hon'ble Apex

Court in the case of Man Singh Vs. Commissioner, Garhwal Mandal,

Pauri and Ors., (2009) 11 SCC 448, and, therefore, we do not intend

to dwell at length on other legs of arguments advanced before us.

16. Admittedly, in this case, the Petitioner was appointed on the

basis of the provisional select-list published by Respondent No.1. His

appointment letter makes it very clear that the appointment was

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purely on a temporary basis and until further orders. The affidavit-

in-reply filed by the Respondents makes it clear that, on account of

an error crept in entering the caste category of the candidates

properly in the merit-list, there was error in the provisional select-

list and hence, that error was required to be rectified. It was clearly

stated that in respect of some candidates, their caste category was

wrongly reflected in the provisional select-list. For e.g., it was stated

that the candidate at Serial No.8, i.e. Respondent No.3 herein, and

candidate at Serial No.13 belong to the 'Scheduled Tribe' category.

However, through oversight, they were shown against

'Unreserved/Open' category and 'Other Backward Class' category,

respectively. On cross-verification of the documents, before

publishing final merit-list, their proper category was revealed and at

that time, it was found that Respondent No.3 has secured the

highest marks of 58.10; whereas the candidate at Serial No.13

Surendrabhai Prabhubhai Patel has secured the second highest

marks of 56.02, and the Petitioner has secured the third highest

marks of 55.66. Hence, as the candidate securing highest marks in

the said category of 'Scheduled Tribe' was entitled to get the

reserved post of that category, Respondent No.3 was entitled to get

the appointment and, accordingly, the candidature of the Petitioner,

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who was securing third highest marks, needs to be cancelled. It was

submitted that Respondent No.1 has only corrected and rectified the

said mistake. It has not made any changes in the marks secured by

the candidates. There is no allegation on the part of the Petitioner

also, that Respondent No.1 has, in this case, acted in any way mala

fide manner or with ulterior object or motive. The affidavit-in-reply

filed by Respondent Nos.1 and 2 on this aspect is not seriously

challenged and it is also supported with the documents produced on

record, including the break-up of marks obtained by all the three

candidates, which is produced before this Court also.

17. In such circumstances, the issue for consideration is, 'whether

the termination of the appointment of Petitioner, as a result of

rectification of the provisional select-list to correct a mistake, is

illegal or void ?'

18. In our opinion, the answer to this issue has to be in the

negative, in the light of the view taken by the Hon'ble Supreme Court

in the above referred case of Man Singh (Supra). In this case also,

the Appellant had been appointed as a 'Peon' on a short term

vacancy from time to time for a fixed period. Thereafter, during his

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period of appointment, the names were called for from the

Employment Exchange for filling up the post of 'Peon' in regular

way. Appellant applied for the said post. The Selection Committee

was constituted. Appellant appeared before the Selection

Committee. The name of the Appellant was placed at Serial No.3 in

the 'General' category. However, thereafter, the name of the

Appellant was deleted and in his place, the name of one Mohan Lal

was inserted. The Appellant's services were then terminated.

Aggrieved by and dissatisfied therewith, Appellant had filed Writ

Petition before the High Court of Uttaranchal, which came to be

dismissed. He has challenged the said order before the Apex Court

on the ground that his services could not have been terminated;

particularly, in view of the fact that he was selected for regular

appointment by the Selection Committee. On behalf of the

Respondent, it was brought on record that the name of the Appellant

was wrongly placed at Serial No.3 in the wait-list, as another

candidate Mohan Lal had secured higher marks than the Appellant.

As there were only three vacancies, it was held that Appellant's

name had to be deleted; especially when Appellant has not

attributed any mala fides to the Respondent and when it was not his

case that Mohan Lal, in fact, had not secured higher marks than

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him. It was held by the Apex Court that, if a mistake was committed,

the Respondents were entitled to rectify the same. According to the

Apex Court,

"All persons similarly situate under our Constitutional Scheme are required to be treated equally. Some mistakes were found in the select-list. If those mistakes have been rectified and the irregularities have been removed by preparing the select-list strictly in accordance with rules, no exception thereto can be taken. Mohal Lal was wrongly placed in the category of reserved candidates, as he has competed with the 'General' category candidates."

19. It was held that, merely because Appellant had continued to

work on the said post for a long time, by that reason, he cannot

acquire indefeasible right to become a permanent employee of the

Department. Thus, his Appeal came to be dismissed by the Hon'ble

Supreme Court.

20. In the present case also, the name of the Petitioner came to be

included in the provisional select-list, on account of the error crept

in entering the caste category of some of the candidates. When that

error was noticed at the time of cross-verification of documents,

Respondent Nos.1 and 2 had to rectify the said error and upon

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correcting the caste category of the candidates, they had to appoint

Respondent No.3, who had secured highest marks. As the Petitioner

has secured third highest marks, it is clear that his name was

wrongly included in the provisional select-list, on account of the fact

that the caste category of Respondent No.3 was wrongly shown,

through oversight, against 'Unreserved/Open' category in the

provisional select-list. Therefore, it cannot be said that any illegality

or impropriety is committed by Respondent Nos.1 and 2 in

cancelling the candidature of the Petitioner for the post of 'Police

Sub-Inspector'. There is not a whisper in the entire submissions or in

the Petition attributing any mala fides to Respondent Nos.1 and 2. It

is also not the case of the Petitioner that Respondent No.3 had not

secured higher marks than him. Therefore, as held in the above-said

authority of Man Singh (Supra), if a mistake was committed by the

Respondents, they were entitled to rectify the same by preparing the

select-list strictly in order of merit and in preparing such select-list,

if the name of the Petitioner cannot find in the merit-list, his

candidature has to be cancelled. As is well-said, 'mistakes are to be

rectified and not perpetuated'.

21. Therefore, the contention raised by the Petitioner that, as per

the letter of appointment, he should have been given one month's

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notice or an opportunity of hearing before terminating him, cannot

be accepted. Such notice of one month or an opportunity of hearing

is contemplated when appointment of the candidate is valid and

regular. Here in the case, when the appointment of the Petitioner

itself was not valid and legal and hence it had to be cancelled or

terminated, the Petitioner has no right to challenge the said order.

22. In our considered opinion, therefore, the Tribunal has rightly

rejected the Petitioner's application. In our writ jurisdiction, no

interference is warranted in the said order. The Petition is

dismissed.

23. Rule, therefore, stands discharged.

[DR. SHALINI PHANSALKAR-JOSHI, J.] [SMT. V.K. TAHILRAMANI, J.]

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